Thông tư 55/2021/TT-BTC hướng dẫn quản lý chi phí cưỡng chế thi hành án với pháp nhân thương mại

CIRCULAR

Providing guidance on the management, allocation, advance payment of expenses for coercion of judgment execution against commercial legal persons

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Pursuant to the Law on the State Budget dated June 25, 2015;

Pursuant to the Law on Execution of Criminal Judgments, dated June 14, 2019;

Pursuant to the Government’s Decree No. 163/2016/ND-CP dated December 21, 2016, detailing a number of Articles of the Law on State Budget;

Pursuant to the Government's Decree No. 44/2020/ND-CP dated April 08, 2020, prescribing coercion of judgment execution against commercial legal persons;

Pursuant to the Government's Decree No. 87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Department of Finance for National Defense and Security,

The Minister of Finance hereby promulgates the Circular providing guidance on the management, allocation, advance payment of expenses for coercion of judgment execution against commercial legal persons.

Article 1. Scope of regulation

This Circular guides the management, allocation, advance payment of expenses for coercion of judgment execution against commercial legal persons (hereinafter referred to as the coercion) prescribed in Article 44 of the Government’s Decree No. 44/2020/ND-CP dated April 08, 2020, prescribing coercion of judgment execution against commercial legal persons (hereinafter referred to as the Decree No. 44/2020/ND-CP).

Article 2. Subjects of application

1. Coercion decision issuers.

2. The agencies where the coercion decision issuers work (hereinafter referred to as agencies issuing coercion decisions), coercion decision execution agency.

3. Commercial legal persons that fail to serve or fully serve legally effective court judgments or rulings and are applied measures to coerce judgment execution (hereinafter referred to as the entities subject to coerce)

4. Financial agencies and state treasuries at all levels.

5. State management agencies in charge of commercial legal persons and other agencies, organizations, and individuals related to coercion execution.

Article 3. Principles of management of expenses for coercion

1. Commercial legal persons subject to coercion must bear all expenses for coercion as specified in Article 43 of the Decree No. 44/2020/ND-CP.

2. Commercial legal persons subject to coercion shall pay the expenses for coercion to the agencies issuing coercion decisions in accordance with this Circular.

Article 4. Expenses for coercion 

1. The determination of expenses for coercion shall comply with Article 43 of the Decree No. 44/2020/ND-CP.

2. Expense contents:

a) Expenses specified in Clause 1 of this Article shall be carried out based on the contracts, contract liquidation, a record of handover of distrained assets (for expense for hiring safekeeping or preservation of distrained assets), actual, lawful, and valid invoices, and documents according to current regulations as approved by the coercion decision issuers.

b) Supports provided for those who are directly mobilized to participate in coercion and coercion protection are prescribed as follows:

A person in charge of executing coercion decisions who works for a coercion decision execution agency shall be entitled to a support of VND 150,000/day of participating in the coercion; a person who is mobilized to execute coercion decisions shall be entitled to a support of VND 100,000/day of participating in the coercion.

Article 5. Allocation of expenses for coercion

The allocation of expenses for coercion of judgment execution against commercial legal persons shall comply with the law on the state budget and the Government's Decree No. 11/2020/ND-CP dated January 20, 2020, on administrative procedures related to the State Treasury sector.

Article 6. Payment and advance payment of expenses for coercion

1. Before organizing the coercion, the agency issuing coercion decisions shall approve cost estimates for coercion. Cost estimates for coercion shall be made on the basis of the coercive measure to be taken, time and location of coercion, plans to conduct the coercion, and the participating forces (number and participants) serving the coercion.

One copy of the approved cost estimates for coercion must be sent to the entities subject to coercion, together with the decision on coercion, the decision on deduction of money from the account of the commercial legal person subject to judicial measures (for a measure of freezing of accounts) to pay expenses for coercion (a document stating the sanctioning date, month and year, payable amount, address for payment in cash, or the account number in case of payment by transfer and other necessary information). At the same time, the agency issuing coercion decisions must send it to the credit institution, State Treasury, securities company that is managing the account of the commercial legal person subject to judicial measures and the agency competent to coercion at the same level (for the case of applying Article 42 of the Decree No. 44/2020/ND-P).

In case of executing coercive measures by freezing accounts, the head of criminal judgment execution agency shall issue a decision on deduction of money amounts on an account of the commercial legal person, the deducted amount must not exceed the amount used to execute judicial measures and expenses for organizing the coercion. Upon receiving a decision on deduction of money amounts on account of a commercial legal person subject to a judicial measure, the credit institution or State Treasury office currently managing the account of the commercial legal person, and securities company where the commercial legal person opens its account shall deduct money amounts on such account and transfer them to a competent criminal judgment execution agency for organizing coerced execution of the judicial measure.

2. In case expenses for coercion have not been collected from the entity subject to coercion because he/she/it does not voluntarily pay or other objective reasons, coercion decision execution agency (or agency with coercion competence of the same level, in case Article 42 of the Decree No. 44/2020/ND-CP is applied) shall, based on the approved cost estimate for coercion, request the agency issuing coercion decisions to make advance payment for coercion expenses from the cost estimates for coercion. The maximum advance payment is equal to the allocated cost estimates for coercion of the agency issuing coercion decisions.

3. A dossier of advance payment includes the annual estimate allocated by the competent authority, a document of approval of expenses for coercion approved by the competent authority, and the withdrawal of the budget estimate (advance) as prescribed.

Article 7. Settlement and refund of advance payment of expenses for coercion

1. At the end of the execution of coercion decisions, the coercion decision-executing agency (or the agency with coercion competence of the same level, in the case of applying Article 42 of Decree No. 44/2020/ND-CP) shall submit the coercion decision issuer to approve the cost estimates for coercion. The agency issuing coercion decisions shall be responsible for sending the approved cost estimate for coercion to the entity subject to coercion (if such entity has paid expenses for coercion).

If the approved coercion expense settlement amount is lower than the amount already paid by the entity subject to coercion, the agency issuing the coercion decisions shall refund the difference to such entity.  If the approved coercion expense settlement amount is higher than the amount already paid by the entity subject to coercion, such entity shall pay the outstanding amount to the agency issuing the coercion decisions.

2. In case where the advance payment of expenses for coercion has been made under Clause 2, Article 6 of this Circular, the agency issuing the coercion decisions shall, based on the approved coercion expense settlement amount, issue a written notice on settlement of approved expenses for coercion, and send it to the entity subject to coercion for payment (such a document must clearly state the sanctioning date, month, year, payable amount, address for payment in cash or account number if payment by bank transfer and other necessary information).

Within 10 days from the date of receiving a notice on the approved coercion expense settlement amount, the entity subject to coercion shall pay expenses for coercion for the agency issuing coercion decisions. Upon collecting money from the entity subject to coercion, the agency issuing coercion decisions must carry out procedures for refund of advance payment to the State budget.

3. In case of collection of expenses for coercion from asset auction proceeds (under Articles 32 and 33 of the Decree No. 44/2020/ND-CP), after deducting expenses for asset auction in accordance with the law on asset auction, the agency executing coercion decisions (or the agency with coercion competence of the same level, in case of applying Article 42 of the Decree No. 44/2020/ND-CP) shall refund expenses for coercion.  In cases the entity subject to coercion has paid expenses for coercion, the agency executing coercion decisions (or the agency with coercion competence of the same level, in case of applying Article 42 of the Decree No. 44/2020/ND-CP) shall refund such entity the expenses for coercion from asset auction proceeds.

4. In case it is impossible to recover expenses for coercion because the entity subject to coercion is bankrupt or dissolved and has no money or assets left to pay the expenses for coercion, the agency executing the coercion decisions shall report the issuer under Clause 5 of this Article.

5. On an annual basis, at the time of making state budget estimate, the coercion decision issuer shall report the use of advance payment for coercion, including: the advanced amount, recovered amount; the amount that has not been recovered; the amount that cannot be recovered (if any); reasons for not being recovered and recommendations to superior management agencies and financial agencies of the same level.

Dossiers for refund of advance payment of expenses for coercion of handling of administrative violations shall comply with Clause 3, Article 6 of this Circular and current regulations on refund of cost estimates.

Article 8. Estimation, payment, and settlement

1. The annual estimation, payment, and settlement of recurrent expenditures by the agency issuing coercion decisions shall comply with the Law on the State Budget and its guiding documents. Expenses for coercion are allocated in the annual estimate of the agency issuing the coercion decisions.

2. At the end of the year, by the end of the settlement adjustment period in accordance with the Law on the State Budget and guiding documents, the unused estimate amount shall be canceled according to regulations, the balance of advance payment of expenses for coercion shall be recovered by transferring to the next year’s advance payment within the annual estimate of the agency issuing coercion decisions.

Article 9. Effect

1. This Circular takes effect on May 28, 2021.

2. Any difficulties arising in the course of implementation of this Circular should be reported to the Ministry of Finance for consideration and settlement./.